Right Against Unreasonable Searches and Seizures

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime. Some countries have certain provisions in their constitutions that provide the public with the right to be free from "unreasonable searches and seizures". This right is generally based on the premise that everyone is entitled to a reasonable right to privacy.

Reference

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"A seizure occurs when the government takes possession of items or detains people. A search is any intrusion by the government into something in which one has a reasonable expectation of privacy. Some examples of searches include: reaching into your pockets or searching through your purse; entering into your house, apartment, office, hotel room, or mobile home; and examining the contents of your backpack or luggage."

Articles

"Civil asset forfeiture is a mechanism by which police and prosecutors seize the property and assets of a person suspected of a crime and keep it all for themselves. While this type of asset forfeiture has been sold to communities as a method of fighting crime by denying 'bad guys' the financial benefits of their misdeeds, the reality of what actually happens is far different. ... The end result has been dramatic increase in police looking for any reason to attempt to seize and keep the property of anybody who ends up in their clutches and try to claim with very little evidence at all a criminal connection."

"The ACLU calls the expanded borderlands, in which two out of three Americans live, a 'Constitution-free zone.' Specifically, the Fourth Amendment protection against unreasonable search and seizure appears to have been suspended. This area is dotted with checkpoints at which anyone can be stopped, questioned, asked to exit his car, searched, and required to surrender personal belongings."

"What the Bush administration is saying is, to hell with the Bill of Rights. We are changing the standard. No probable cause and no oaths or affirmations are needed. All that is needed is if we personally decide that search and seizure is reasonable. By that standard, no police department in the U.S. would need to bother with search warrants."

"... the administration gathered much more information through the NSA program ... including a wide range of data to perform 'pattern analysis,' ... — a process that reportedly exposed the entire U.S. telecommunications system, including e-mail, to surveillance — and ... monitored both domestic and international calls."

FBI Free to Ambush our Bill of Rights, by Nat Hentoff, 23 May 2012
Discusses the Guidelines for Domestic FBI Operations changed and expanded by Attorney General Michael Mukasey in late 2008 and retained by the Obama administration

"One chapter in particular lists the FBI guidelines, explaining how they throttle the Bill of Rights: 'The Mukasey guidelines ... flatly [state] that all activities authorized by the guidelines are exempt from the Privacy Act.' Here, as demonstrated by Ratner and Kunstler, is the America in which you are now living: 'As surveillance and the gathering of information can be carried out without any criminal predicate and on the completely innocent, these guidelines have effectively granted the FBI the authority to use and retain records on millions of law-abiding Americans.'"

"Mencken goes on to add, on the nature of government and attempts to stem its incursions: 'It is, perhaps, a fact provocative of sour mirth that the Bill of Rights was designed trustfully to prohibit ... the invasion of the citizen's liberty without justifiable cause ... It is a fact provocative of mirth yet more sour that the execution of these prohibitions was put into the hands of courts, which is to say, into the hands of lawyers, which is to say, into the hands of men specifically educated to discover legal excuses for dishonest, dishonorable and anti-social acts.'"

"The Health Insurance Portability and Accountability Act of 1996 mandated a new federal medical records database, and police insist on the right to view that information without a warrant. ... The Fair Health Information Practices Act of 1997 (H.R. 52), now the subject of a Senate hearing, boasts of its new 'protections' for privacy and new penalties for violations. But the bill allows the trustees of medical information to continue to release medical records to law enforcement officers without a warrant or subpoena. This bill thus ignores the most fundamental privacy protection of all, the freedom from warrantless searches provided by the Fourth Amendment."

"Americans seem to have forgotten why the Founding Fathers prohibited government from spying on them. ... such blind faith in government simply ignores the lessons of U.S. history. ... The purpose of the Fourth Amendment was to prevent government officials from having 'dictatorial power over the streets' and elsewhere ..."

"... courts, under intense prodding from drug enforcement officials, have relaxed search-and-seizure standards to facilitate the 'war' on drugs. Similar reasons lie behind legislation that has undermined property rights by encouraging civil confiscations, which do not require proof of guilt. The 1984 Comprehensive Crime Control Act contains a section on asset forfeitures that allows local police to keep assets seized during drug investigations conducted with the cooperation of federal agencies, in contrast to many state laws directing such assets into general or special funds."

Imagine a Boot Stamping on Your Face, by John W. Whitehead, 7 Jul 2017
Discusses what the author considers a police state in 2017 United States and provides short reviews of 15 films that "may be the best representation of what we now face as a society"

"The courts have shredded the Fourth Amendment's protections against unreasonable searches and seizures. In fact, SWAT teams battering down doors without search warrants and FBI agents acting as a secret police that investigate dissenting citizens are common occurrences in contemporary America. ... And bodily privacy and integrity has been utterly eviscerated by a prevailing view that Americans have no rights over what happens to their bodies during an encounter with government officials, who are allowed to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation."

"Civil asset forfeiture has been with us for centuries, but the Drug War has kicked the government's incentives to seize property without charge or trial into high gear. Federal seizures alone have gone from tens of millions to billions of dollars a year over the last generation, while the vast majority of states still use a deficient and abusive process to take private property from citizens who haven't been charged with any wrongdoing. ... The key findings of the report include ... a continued burden on property owners who have to prove themselves innocent rather than being proven guilty by the state ..."

"So it's okay if the government monitors masses of innocent people as long as it's reviewed by a clique of gagged members of Congress and a secret rubber-stamp 'court.' That's what I call trust in power. Frankly, it's more alarming that the spying is legal rather than rogue. Michael Kinsley once said, 'The scandal isn't what's illegal, the scandal is what's legal.'"

James Otis - Hero of the Day, The Daily Objectivist, 2000
Introduction to and excerpt of a speech given in February 1761 before the Superior Court, Province of Massachusetts Bay, challenging writs of assistance on behalf of a group of Boston merchants

"... I will to my dying day oppose ... all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book. ... one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege ..."

"Schoolkids learn right away that the government blatantly lies to them about the effects of drugs, and also learn that the government can search them at any time without any cause, raising a generation both cynical and resigned to corrupt authoritarianism. ... Drug warriors encourage parents to turn in their kids and kids to turn in their parents. It's destroyed most of the Fourth Amendment and is well on the way to destroying freedom of thought ..."

"In Griswold v. Connecticut (the 1965 contraceptives case), the Court struck down as unconstitutional a state ban on the sale and use of contraceptives. Writing for the Court, Justice Douglas (a Roosevelt appointee) held that the law violated what he called the 'right of privacy' that he said could be discerned in the 'emanations' and 'penumbras' of the enumerated rights, such as the right to be free from unreasonable searches."

Liberty, safety, and Benjamin Franklin, by Eugene Volokh, The Volokh Conspiracy, 11 Nov 2014
Parses the famous Franklin quote about "essential Liberty" and "little temporary Safety" in the two contexts in which he made it

"The Fourth Amendment bars unreasonable searches and seizures, and requires probable cause for warrants. But that means that it allows reasonable searches and seizures, and allows warrants (even to search your houses and papers) when there is probable cause. If we wanted maximum liberty, we could ban all searches and seizures, period. But we realize that the consequence would be an unacceptable loss of safety (you couldn't search someone's home for a dead body, or for a murder weapon), and indeed a loss of liberty, in the sense that criminals undermine our liberty, too. So we trade off some nonessential liberty ... in order to get a considerable amount of long-term safety ..."

"Nevada and 20 other states have criminalized remaining silent in the face of a policeman's question 'What's your name?' By a 5-4 vote the U.S. Supreme Court said that's okay — it's no violation of the Fourth Amendment prohibition against unreasonable searches ... It should make the citizens of a putatively free country uncomfortable to know that the police can have the authority to stop and demand identification on the basis of a 'reasonable suspicion' ... "

"... for years the ACLU has tried to challenge the surveillance programs in court on Fourth Amendment grounds, but the Obama administration has blocked the effort by arguing that the ACLU has no standing to bring the suit. It's a classic Catch-22. Since the surveillance is secret, no one can know if he has been spied on. But if no one knows, no one can go into court claiming to be a victim, and the government will argue that therefore the plaintiff has no standing to challenge the surveillance."

"... the Patriot Act ... endangers civil liberties by easing federal rules for search warrants, allowing warrantless searches in some instances, allowing expanded wiretaps and internet monitoring ... One amendment ... denies funding for the Justice department to execute so-called 'sneak and peek' warrants authorized by the Patriot Act. 'Sneak and peek' warrants enable federal authorities to search a person's home, office, or personal property without the person's knowledge! This secrecy upsets decades of legal precedent requiring that an individual be served with a warrant before a search."

Security Cameras' Slippery Slope, by Gene Healy, The Washington Examiner, 11 May 2010
Discusses the use of surveillance cameras in New York City, in London and elsewhere in the United Kingdom and in the United States, as well as drones by British police

"... the nonprofit group Privacy International ranks the U.K. as the worst of the Western democracies at protecting privacy, with a record only slightly better than Russia's. We're a few years behind our trans-Atlantic cousins, but we're catching up. The U.S. Department of Homeland Security has bought anti-terror cameras for towns as small as Liberty, Kan. (pop. 95), and Dillingham, Alaska, which is too small for a streetlight, but big enough for 80 DHS-funded cameras. Is any of this necessary?"

"A newspaper publishes a story about a secret government surveillance program on Americans, based on anonymous government sources who were troubled by a program not authorized by the laws or the Constitution. Do you: ... Cheer that this information has been made public and consider the journalists and leakers heroes who have exposed information the government should never have been able to keep secret in the first place?"

The Bill of Rights: Searches and Seizures, by Jacob Hornberger, Future of Freedom, Oct 2004
Discusses general warrants (and the British case of Entick v Carrington) and writs of assistance in colonial America as precedents for the framing of the Fourth Amendment and the latter's imporance in the present

"The Fourth Amendment to the U.S. Constitution is rooted in the horrific government abuses arising from 'general warrants' in English history and 'writs of assistance' in British colonial history in America. ... General warrants entitled law-enforcement officials to go into a person's home for the purpose of making a random search in the hope of finding incriminating evidence. ... In the English colonies, the 'writs of assistance' on which government officials relied were general warrants that allowed agents to search for smuggled items — namely molasses, tea, and rum — within any suspected premises."

"But normal detection and enforcement methods will not work in the drug war. Why? Because regardless of what the rest of society thinks about drug use, neither drug users nor drug dealers consider themselves victims. To enforce drug prohibition, police must assume powers and pursue practices that are unnecessary for enforcing laws against other crimes. These tactics include searches of people and property suspected of holding drugs, wiretapping and other surveillance, and violent raids of suspects' homes. Sometimes these tactics have tragic results. Police mistakes often result in 'no-knock' raids of the wrong homes."

"... the Obama administration's decision to install invasive 'full body' scanners at airports in the United States, and to impose invasive pat-downs for those who uphold their Fourth Amendment rights against 'unreasonable searches.' ... Sadly, the majority of Americans seem to support this new attack on privacy. A recent poll found that 80% of citizens go along with the 'full body' searches, a clear violation of the Fourth Amendment (no matter what the courts decide)."

"... in the freed market I would find the right 'balance' for myself, and you would do the same. ... The market would cater to people with a range of security/privacy concerns, striking the 'balance' differently for different people. ... we can say that there would be no trade-off between privacy and security at all, because the information would be voluntarily disclosed by each individual on mutually acceptable terms. ... But that sort of situation is not what Barack Obama, Mike Rogers, Peter King, and their ilk mean when they tell us that 'we' need to find the right balance between security and privacy. They mean they will dictate to us what the alleged balance will be. We will have no real say in the matter ..."

"... in the freed market I would find the right 'balance' for myself, and you would do the same. ... The market would cater to people with a range of security/privacy concerns, striking the 'balance' differently for different people. ... Obama ... meant he and his co-conspirators in Congress and the national-security apparatus will dictate to us what the alleged balance will be. We will have no real say in the matter, and they can be counted on to find the balance on the 'security' side of the spectrum as suits their interests."

"Arguably, the USPS has also violated the Fourth Amendment, which guarantees the right of people to be secure against unreasonable search and seizure. The postal prerogative to open and examine letters raises this question. If the USPS did not have the privileges of a legal monopoly, it could not enforce policies that violated the rights of its customers."

"The Writ of Assistance is important ... because the threat of its use caused the founding fathers to place the Fourth Amendment in the Bill of Rights. ... The amendment prohibits 'unreasonable searches and seizures,' which meant, most of all, that tax agents cannot snoop without a court order based on an affidavit establishing probable cause."

The Secret State, by Carl Oglesby, 19 Dec 1991
Details various events from the establishment of the Gehlen Org after World War II to the 1991 death of Danny Casolaro that Oglesby says led to the creation of "a national-security oligarchy, a secret and invisible state within the public state"

"As a House committee explained in a 1979 report, Shamrock intercepted 'virtually all telegraphic traffic sent to, from, or transiting the United States.' Said the House report, 'Operation Shamrock was the largest government interception program affecting Americans' ever carried out. ... A judicial panel decided in the Pentagon's favor despite the ACLU's argument that to do so was 'dangerously close to an open ended warrant to intrude on liberties guaranteed by the Fourth Amendment.'"

"Obama says we need surveillance to protect us from terrorists. But we could be safe without having our freedoms trampled if the government would stop committing and enabling oppression in foreign countries, thus creating the desire for revenge against Americans. Freedom and security require no trade-off, because genuine freedom includes security against government snooping."

War on Drugs Taking People to New Lows, by Dimitri Vassilaros, Pittsburgh Tribune-Review, 14 Mar 2000
Discusses a plan by Allegheny County, Pennsylvania District Attorney Stephen A. Zappala Jr. to create a "nationwide drug intelligence network"

"Do you truly support a zero-tolerance policy? If so, there cannot be a double standard that targets sellers and not buyers. Therefore, the database must include: names, addresses and telephone numbers of every drug seller and buyer; their relatives (including parents and children); businesses they frequent (not just bars); neighborhoods where they hang and even churches they attend. The database also must include personal information on many of our public-school children."

"You don't have to give up Fourth Amendment protections in order for the government to take care of us. The idea that search warrants could be granted so easily under the Patriot Act with sneak and peek searches and going into libraries and other places to find out what people are doing is wrong. It's total surveillance. ... the Bush Administration and our leadership in Congress ... actually want more powers for the federal government to monitor everything that we the people do. Of course, they say this is to catch terrorists, but these rules affect all private, law-abiding American citizens as well."

"Normally, in a search situation, you require some kind of particular information about the places to be searched. People realize that if you're trying to look for guns and drugs in a public housing project, that particularization is not going to be possible. Yet there seems to be a strong impulse for trying to have the search nonetheless. ... One of the arguments that Justice Sutherland made ... was that we would never allow the government to say that you can only use the public highways so long as you're prepared to waive your rights against unreasonable search and seizure with respect to your private houses and apartments."